CITATION: R. v. Spencer, 2019 ONCJ 91
DATE: February 20, 2019
COURT FILE No.: Toronto 17-55003621
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
PATRICK SPENCER
Before Justice D.A. Fairgrieve
Heard on November 27 and 28, 2018, and February 11, 2019
Reasons for Judgment released on February 20, 2019
Ms. K. Rajan...................................................................... counsel for the Crown
Ms. M. Elajami............................................................... counsel for Mr. Spencer
FAIRGRIEVE J.:
[1] On February 11, 2019, Patrick Spencer was found guilty of impaired driving and refusing to comply with an Intoxilyzer breath demand. The evidence proved beyond a reasonable doubt that he had committed both offences in Toronto during the early morning hours of November 27, 2017. Indeed, the evidence called by the Crown was quite overwhelming, and no defence evidence was called on the trial proper.
[2] The only complication in the case resulted from the finding, in accordance with the Crown’s eventual concession, that a breach of s. 9 of the Charter occurred when Mr. Spencer was kept in detention at the police station and not released for 8 hours following his failure to comply with the breath demand that had been made. Although granted an adjournment to allow the Crown to call police evidence in response to Mr. Spencer’s testimony on the Charter application, Ms. Rajan, counsel for the Crown, stated on the continuation date that she was not in a position to call further evidence. She fairly conceded that in the absence of evidence to justify the protracted detention of the defendant at the police station, the constitutional violation had been established.
[3] Unfortunately for the defendant, however, the case law binding on a summary conviction trial court made it clear, I am sure, that neither of the remedies sought – a stay of proceedings or the exclusion of evidence already obtained by the police prior to the “overholding” – was available in the circumstances. Similarly, I had no difficulty rejecting Ms. Elajami’s submission that a verdict dismissing the charges, even if they had been proved beyond a reasonable doubt by the Crown, would be an appropriate remedy. Verdicts that failed to accord with the facts proved by properly admitted evidence and the applicable law could only, in my view, bring the administration of justice into disrepute.
[4] What was left, then, assuming the charges were proved by the Crown, was the need to fashion an appropriate and just remedy under s. 24(1) of the Charter. The appellate decisions binding on me dictated, I concluded, that in the circumstances, the right remedy was limited to a reduction of the minimum fine prescribed by the Criminal Code for each offence.
[5] It might also be pointed out that while the case ended up being quite straightforward, it was only during the course of submissions on the third day of trial that defence counsel expressly abandoned her position that a s. 7 Charter violation had occurred as a result of the malfunctioning camera system in the police car that failed to produce video or audio recordings at the scene of Mr. Spencer’s arrest.
[6] In order to avoid the need for a further court appearance by Mr. Spencer (and also because there was a continuing, unrelated case involving a person in custody to be dealt with the same afternoon), I gave oral reasons for judgment and sentence and indicated that I would provide brief additional written reasons to include specific references to the authorities that were cited by counsel and compelled the conclusions that were reached. These are intended to be those reasons.
The Offences Proved by the Crown
[7] Given the presumption of innocence, before Mr. Spencer could be found guilty of either offence, the Crown obviously had the burden of proving each essential element of the particular charge beyond a reasonable doubt. Defence counsel submitted that the evidence failed to prove either that Mr. Spencer’s ability to drive was impaired by alcohol at the relevant time or that he wilfully refused to comply with the admittedly valid breath demand that had been made.
[8] Specifically, Ms. Elajami argued that given P.C. Dyke’s apparent failure to observe the indicia of impairment described by Sgt. Marxer in his evidence, and given the video recording showing Mr. Spencer’s condition during the attempts to obtain breath samples from him, the Court should be left in a state of reasonable doubt concerning his alleged impairment. Similarly, Ms. Elajami submitted that it was incumbent on the Crown to have called the Intoxilyzer operator as a witness and that the video of the events that occurred in the breath room did not prove a wilful refusal to blow. Instead, she argued, it showed honest attempts by Mr. Spencer to comply with the demand, but that his efforts proved, for unexplained reasons, to be unsuccessful.
[9] As already stated, I considered the evidence relating to both charges to be overwhelming. I did not find Ms. Elajami’s submissions at all persuasive, and I was not left in a state of reasonable doubt concerning any of the essential facts the Crown was required to prove.
[10] I accepted the evidence of Estelle Rulton that at about 2:00 a.m. on November 27, 2017, she heard a man down in the driveway of her apartment building loudly calling out a name. Looking out her window, she saw the man standing outside the open passenger door of a black SUV. Its engine was running. The man, who seemed agitated to her, appeared to be calling to someone inside the building. He walked around the vehicle, with what she described as a “stagger,” and continued to shout loudly for another ten minutes or so. Ms. Rulton at some point called out to him, “Keep it down. I’ll call the cops.” The man appeared to be drunk, she stated, as he continued walking around the SUV.
[11] A minute or so later, according to her evidence, which I accepted, the man got into the car, reversed it, and having struck a tree, he positioned the vehicle to drive it forward on the driveway into a parking space. In the process, he hit a chain link fence to its left and then pulled forward to where the front of the vehicle struck the exterior brick wall of the building’s garage. The driver then got out of the vehicle, which was still running. Since the vehicle was not observed later to have been damaged, I think it fair to say that Ms. Rulton’s descriptions of the driving overstated the contact made between the vehicle and the tree, fence or brick wall, and that there were at most bumps that occurred. Nonetheless, I was satisfied, her observations of the erratic movements of the vehicle caused her genuine concern and led her to call the police.
[12] Ms. Rulton called 9-1-1 at 2:28 a.m. because, she stated, the driver appeared to be drunk and she was concerned that he would drive again and harm someone. Although the quality of the recording of the 9-1-1 call was poor, at one point, Ms. Rulton could be heard yelling loudly at the man, “Do NOT drive that car!” Ms. Rulton gave a detailed description of the man and his clothing, as well as a description of the black SUV, including its licence plate number.
[13] Ms. Rulton admitted during her testimony that she was no longer in a position to identify the driver, but police officers arrived on scene only minutes after her call and found Mr. Spencer to match the detailed description she had provided to the 9-1-1 operator. Ms. Rulton testified, as did the two uniformed officers who attended, that she came outside and confirmed that Mr. Spencer was the person she had called 9-1-1 to report. In the course of her submissions, Ms. Elajami ultimately conceded that Mr. Spencer’s identity as the person who had been operating the vehicle was no longer an issue at trial.
[14] In cross-examination, Ms. Rulton admitted that she could not remember the details surrounding the request by the police to prepare and email her witness statement to D.C. Garcia, the detective assigned to the case, but she testified that she sent it to him within the next day. She testified that she did not think that she told the police then that she had taken the three photos that were filed as exhibits (which actually showed little more than an SUV with its lights on in different locations in the dark). She also agreed with the suggestion that, on the phone with 9-1-1 operator, she did not provide the details of the driving she was witnessing, including the SUV reversing and hitting the tree and fence, and then nearly hitting a parked van that she referred to in her statement. Instead, she testified, given her nervous state at the time, she just exclaimed, “Shit!”, as recorded on the 9-1-1 call, when she saw the vehicle being driven in the way she described in her later written statement.
[15] Ms. Rulton further testified, in cross-examination, that when she came downstairs and pointed out the defendant, she did not look at the SUV, nor did the officers ask her for a description of everything she had seen. She also testified that while it was a loud voice yelling “Pussy!” that initially caught her attention at around 2:10 or 2:15 a.m., after she got her glasses and looked outside, she saw a man staggering around the vehicle, with the passenger door and rear hatch open, while she could hear the engine running and music playing. When asked what she meant by the word “staggering,” she testified that the man was not walking in a straight line, but rather was “teetering over.”
[16] Police Sgt. Marxer testified next. He testified that during the early morning hours of November 27, 2017, he was on duty as a uniformed primary response police constable (prior to his promotion and current rank) in a marked cruiser in 22 Division in Etobicoke. Having been an officer with the Toronto Police Service since 2000, he stated that he had been involved in many impaired driving investigations.
[17] Sgt. Marxer testified that at 2:32 a.m. he and his then partner, P.C. Dyke, received a radio call to attend at 22 Burnamthorpe with respect to Ms. Rulton’s 9-1-1 call concerning an alleged impaired driver in the parking lot at that address. They were provided with a detailed description of the man and his clothing and the vehicle, a black SUV with the licence plate BVNP 277. When the two officers arrived 5 minutes later, at 2:37 a.m., both officers immediately observed the vehicle in the driveway, still running and with its lights on, and saw the defendant, the only person in the area, standing beside it.
[18] I found Sgt. Marxer to be a credible witness who gave reliable evidence concerning the factual issues in dispute. Despite some obvious inconsistencies between the testimony given by Sgt. Marxer and that given by P.C. Dyke, I was satisfied that Sgt. Marxer was clearly the more observant and careful police witness involved in the investigation, and that findings of fact could safely be based on Sgt. Marxer’s evidence. I am not overlooking P.C. Dyke’s testimony that he did not himself observe any indicia of impairment on Mr. Spencer’s part, nor did he recall, for example, anything memorable having occurred during the drive to the police station. P.C. Dyke gave the impression that the omissions from his evidence most likely resulted from a certain disengagement on his part, since it appeared that Sgt. Marxer had taken the lead in the initial interaction with Mr. Spencer at the scene of the arrest, and then later during the dealings they had with him in the breath room at 23 Division (which were recorded on video, in any event). I was satisfied that P.C. Dyke was not a careful participant in the investigation, and that his evidence, where it varied from that of Sgt. Marxer, did not give rise to any uncertainty as to the events that actually occurred.
[19] Sgt. Marxer testified that during the brief conversation he had with Mr. Spencer, who approached the police cruiser upon their arrival, he observed that the defendant was unsteady on his feet, his speech was slurred, he had a glazed look in his eyes and that he was obviously intoxicated. Although Sgt. Marxer testified that there was an odour of alcohol, he agreed in cross-examination that he did not include that observation in his notes referring to his grounds for having arrested the defendant. P.C. Dyke testified that he himself only detected a strong odour of alcohol after Mr. Spencer had been placed in the rear of the police cruiser.
[20] After Ms. Rulton came outside and confirmed that Mr. Spencer was the person she had seen driving, at 2:43 a.m., Sgt. Marxer arrested the defendant for impaired driving. I accepted Sgt. Marxer’s evidence that when he asked Mr. Spencer if he understood, the defendant at first mumbled something incoherently, but a few seconds later indicated that he understood. The defendant was then informed of his s. 10(b) right to counsel and, at 2:46 a.m., Sgt. Marxer read the approved instrument breath demand authorized by s. 254(3). Mr. Spencer said that he would comply. In her submissions, Ms. Elajami expressly agreed that there was no issue that the breath demand had been lawfully made, one of the essential elements of the alleged s. 254(5) offence.
[21] Sgt. Marxer testified that at 3:05 a.m., after he had moved the SUV into a parking space and arranged for a tow truck, they left for 23 Division, the closest police station where Intoxilyzer testing could be conducted. Sgt. Marxer testified, truthfully I am sure, that Mr. Spencer had passed out in the rear seat of the cruiser before they left the scene of the arrest, that he was snoring audibly, and that he had to be woken up several times while en route to the station and then again, at 3:17 a.m., when they arrived. P.C. Dyke’s failure to have noted or, a year later at trial, to have recalled these details did not cause me to doubt the accuracy of Sgt. Marxer’s evidence in this regard.
[22] I also accepted Sgt. Marxer’s evidence that because Mr. Spencer had passed out or had been sleeping in the police cruiser, upon their arrival at 23 Division, he informed Mr. Spencer again of his right to counsel and reminded him that he was at the police station for the purpose of providing breath samples. Sgt. Marxer assisted the defendant both out of the cruiser and as they made their way from the sallyport into the booking hall, since he remained very unsteady on his feet.
[23] After Mr. Spencer spoke to duty counsel, he was taken, at 3:45 a.m., into the breath room and turned over to the qualified technician, P.C. Paroussoudi. Both Sgt. Marxer and P.C. Dyke remained in the room while she attempted to obtain a suitable breath sample from Mr. Spencer. Her efforts in that regard, captured on video, extended over the next half hour. The video recording that was played in court showed that it was only at 4:15 a.m., after many repeated futile attempts to obtain a suitable breath sample from the defendant that she finally made the decision that he would be charged with having wilfully refused to comply with the breath demand.
[24] By way of summary, I think it accurate to say that the video amply demonstrated that the qualified technician carefully explained the testing procedure to Mr. Spencer and that she displayed both patience and persistence in providing many opportunities to him to comply. New mouthpieces were provided on six or seven separate occasions. She repeated her instructions many times and cautioned him as to the consequences of failing to comply. It was only after it became obvious that Mr. Spencer’s failure to provide a suitable sample was deliberate, and that he was not making any sincere effort to blow, that P.C. Paroussoudi finally abandoned her efforts to obtain a breath sample.
[25] The video recording, as well as the evidence of Sgt. Marxer and P.C. Dyke who were present at the time, made it clear that that the abortive attempts to obtain even the first breath sample from Mr. Spencer were met with his failure to blow for more than a second or two, that he sometimes blocked the mouthpiece with his tongue or allowed air to escape, that he either just held the mouthpiece in his mouth without blowing at all, or that he held his breath completely or merely provided short, intermittent bursts, as evidenced by the sounds of the approved instrument, that failed to produce a suitable sample that could be analyzed. While Mr. Spencer repeated many times that he was doing what she was asking, or that he was trying his best, or (about 9 minutes into the video), “I’m not trying to be a dick, I swear to God,” it was patently obvious that he was wilfully failing to comply. In addition, while involving a degree of subjective interpretation, I concluded that one could readily detect slurred speech or sputtering or inarticulate utterances that were simply not consistent with the speech patterns demonstrated by Mr. Spencer at other points in the video.
[26] The only available inference, I concluded with certainty, was that Mr. Spencer deliberately refused to comply with the lawful breath demand. There was no evidence to give rise to a reasonable doubt that he might have had a reasonable excuse for his refusal. Indeed, he appeared both in the video from the police station and from his outward appearance in the courtroom to be a healthy person in his mid-30’s, showing no hint of any inability to provide a proper breath sample. No evidence was called to suggest otherwise.
[27] Since the evidence proved the s. 254(5) refusal to comply charge beyond a reasonable doubt, the finding that Mr. Spencer committed the offence charged in Count 2 became inescapable. The adverse inference permitted by s. 258(3), therefore, became available to supplement the evidence on which the Crown relied to prove the impaired driving charge.
[28] In view of the evidence I accepted from both Ms. Rulton and Sgt. Marxer, I was satisfied beyond a reasonable doubt that at the time the defendant was operating the vehicle, his ability to drive was impaired by alcohol. This was not a close case. I unreservedly accepted Sgt. Marxer’s evidence that Mr. Spencer was obviously intoxicated when the officer arrived and observed his condition. I also accepted the officer’s evidence that his opinion that Mr. Spencer was impaired by alcohol did not change during the period that attempts were made at the police station to obtain a breath sample from him. Moreover, in my view, the adverse inference that arises from his wilful failure to comply with the breath demand reinforces the inevitable conclusion that the Crown had proved the impaired driving offence. All of the elements of the charge having been established beyond a reasonable doubt, I was compelled to find Mr. Spencer guilty on Count 1 as well.
The s. 9 Charter breach
[29] As already stated, the attempts to obtain suitable breath samples from the defendant ended at 4:14 a.m. when the qualified technician made the decision that the “refusal” charge would be laid. Sgt. Marxer testified that he then lodged Mr. Spencer in an interview room and advised S/Sgt. Scanlon, so that the officer in charge of 23 Division could decide if he could be released. P.C. Dyke testified that at 5:25 a.m., he served documents, including the automatic licence suspension, on Mr. Spencer, and that he appeared to understand them. Sgt. Marxer and P.C. Dyke then returned to 22 Division, where they worked until the end of their shift. Both officers testified that a constable has no control over the detention of a person in Mr. Spencer’s situation and that it was up to the officer in charge of 23 Division to determine when the person could safely be released.
[30] Mr. Spencer, giving evidence only with respect to the Charter issue, testified that he was taken from the interview room and placed in a cell shortly after he had received the documents. Despite trying to get an officer’s attention to ask how long he would be there and to ask to call his wife, he was not released by the sergeant at the station until just after 12:30 p.m., when he entered into a promise to appear. Mr. Spencer testified that he was never informed of the reason why he had been kept in custody for so long. In cross-examination, he agreed that it was possible that an officer had come to check on him when he was sleeping in the cell, but no evidence was called by the Crown that that had actually occurred. While Ms. Rajan attempted to provide an explanation for why no additional police evidence was available on the date the trial continued, I did not permit her to supplement the evidence with factual assertions unsupported by any evidence.
[31] Since the evidence that was called did not provide any justification for Mr. Spencer’s continued detention at the police station for eight hours after his failure to comply with the breath demand, the Crown conceded that the detention did not meet the requirements of s. 498(1) and agreed that Mr. Spencer’s right not be arbitrarily detained, guaranteed by s. 9 of the Charter, had been infringed.
[32] The issue then became determining the appropriate remedy. Despite the many cases that were referred to by counsel, 43 of which were reproduced in the books of authorities that were filed, I was of the opinion that the appellate judgments binding on me dictated the proper result.
[33] In R. v. Iseler, [2004] O.J. No. 4332, 190 C.C.C.(3d) 11 (Ont. C.A.) [Tab 27 of the Crown’s book of authorities], the Court of Appeal dealt with a comparable case of “overholding” a person charged with drinking and driving offences. In that case, the accused had been detained in a cell at a police station for about 11 hours after Breathalyzer tests producing a reading of 175 milligrams of alcohol per 100 millilitres of blood. Since no police evidence was called by the Crown to account for the protracted period in custody, Armstrong J.A. found an arbitrary detention and a breach of s. 9 of the Charter. In dismissing the application for a stay of proceedings as the appropriate remedy, however, he stated the following:
[30] In O’Connor v. The Queen (1995), 103 C.C.C. (3d) 1… (S.C.C.), L’Heureux-Dube J. stated at para. 82:
It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases,” where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.
[31] While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant’s s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in [R. v.] Sapusak, [1998 O.J. No. 4148 (C.A.)], “there was no temporal or causal connection between the breach and the obtaining of the evidence.” I am accordingly satisfied that this is not “the clearest of cases” warranting the grant of a stay of proceedings.
There is no justification, in my view, for departing from the same reasoning in this case. A stay of proceedings here was simply not the “appropriate and just” remedy authorized by s. 24(1).
[34] It should similarly be noted that Sapusak, supra, quoted by Armstrong J.A., also decided that the exclusion of evidence under s. 24(2) was not warranted in such circumstances either, since the evidence gathered prior to the “overholding” had not been, to use the words of s. 24(2), “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter.” Morden A.C.J.O.’s complete sentence, quoted in part by Armstrong J.A. reads as follows:
However, in the event that there was an arbitrary detention, it could not, in our view, be a basis for excluding the breathalyzer evidence since there was no temporal or causal connection between the breach and the obtaining of the evidence.
[35] More recently, in R. v. Larocque, 2018 ONSC 6475, Kurke J., sitting as a summary conviction appeal court in Sudbury, considered another “overholding” case. The accused, whose breath tests showed 214 milligrams of alcohol per 100 millilitres of blood, had been kept in custody for 7 and a half hours until, it was stated, he was “sober in order to release.” As in the present case, the sergeant who authorized that detention did not testify. In finding that the trial judge had erred in failing to find a s. 9 Charter breach, Kurke J. went on to decide that the reasons given by Laskin J.A. in R. v. Edwards (appeal by Pino), 2016 ONCA 389, [2016] O.J. No. 2656 (C.A.), in a very different factual context, did not apply to drinking and driving cases where an accused was detained after breath tests “pending sobriety.” At paras. 64 and 65, Kurke J. stated:
… Whether the analysis is causal, temporal or contextual, there is no genuine connection between the care or control, the breath samples that were obtained from the appellant and analyzed, and the breach that followed.
Were the requested relief pursuant to s. 24(1), some remedy short of a stay could be crafted: R. v. Waisanen, 2015 ONSC 5823 at para. 34-35 [… other cases cited omitted]. However, pursuant to s. 24(2) of the Charter, the binding authority of Sapusak and Iseler still guides the analysis, and the request to exclude the breath readings and the evidence that hinges on them, must be dismissed.
See also R. v. Cheema, 2018 ONSC 229 (Barnes J.).
[36] In my view, Ms. Elajami presented no cogent reason in her submissions for why the conclusions reached in Larocque and Cheema would not also be dictated in a case like this one involving the “overholding” of an obviously impaired person who wilfully refused, without reasonable excuse, to provide the required breath samples.
[37] The judgment of K.L. Campbell J. in R. v. Waisanen, referred to by Kurke J. supra, is a Toronto summary conviction appeal decision that is obviously binding on me. In his reasons, at para. 29, Campbell J. held that a stay of proceedings was clearly the wrong remedy for an “overholding” s. 9 breach of the kind that had occurred in that case. Indeed, it was described as “an excessive and extravagant remedy” for the 10-hour detention of the accused after breath tests that showed a blood alcohol concentration of 246 milligrams per 100 millilitres of blood in circumstances where there had been, at least initially, a concern that he should “sober up” before his release. Campbell J. suggested, at para. 34 of his reasons, that a reduction in the sentence would be an appropriate remedy to disassociate the justice system from the state action that produced the constitutional violation. The case was remitted to the trial judge to impose a fit sentence.
[38] Subsequently, in the same case, when the matter again returned to the summary conviction appeal court after the sentencing by the provincial judge, Corrick J., in reasons reported at R. v. Waisanen, 2016 ONSC 4095, allowed the Crown appeal. She found that the trial judge erred in finding that the “overholding,” resulting in the s. 9 violation, reflected an ongoing systemic problem, rather than the isolated incident already found by her Superior Court colleague. At paras. 11-12 of her reasons, she allowed the appeal, stating the following:
In my view, a conditional discharge and no driving prohibition is not a fit sentence in light of all of the circumstances of the case as found by Justice Campbell. Mr. Waisanen was grossly impaired by alcohol while he was operating his car on a public roadway. The potential for tragic consequences was real. The sentence imposed must satisfy the paramount sentencing objectives of general and specific deterrence. A conditional discharge does not give effect to those objectives, and is a demonstrably unfit sentence.
In my view, a reduced fine and the mandatory driving prohibition adequately redress the breach of Mr. Waisanen’s Charter rights while at the same time give effect to the sentencing principles of denunciation and deterrence, both general and specific.
[39] Ms. Elajami did not suggest here that the evidence that established Mr. Spencer’s unjustified and unlawfully protracted detention, breaching his s. 9 Charter rights, was anything other than an isolated incident or that it demonstrated any systemic failure on the part of the Toronto Police Service to monitor detainees and avoid such constitutional violations.
[40] In my view, the appropriate remedy under s. 24(1) was the one suggested by Justice Corrick. The monetary penalties imposed on Mr. Spencer were reduced to $200 on each charge, and the s. 259(1) driving prohibition order was made for the minimum 12-month period.
Released: February 20, 2019
Signed: Justice D.A. Fairgrieve